Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 35 - Evidence, May 29, 2002
OTTAWA, Wednesday, May 29, 2002
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill S-41, to re-enact legislative instruments enacted in only one official language, met this day at 3:40 p.m. to give consideration to the bill.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, this is our fifth meeting in consideration of Bill S-41. Our witnesses today are Mr. Warren J. Newman, Mr. Marc Tremblay and Mr. John Mark Keyes, officials from the Department of Justice, who will present and explain proposed amendments to the bill.
Mr. Marc Tremblay, Senior Counsel, Official Languages Law Group, Department of Justice: Following the deliberations of the committee, we returned to our drafting table and tried to respond to some of what we perceived to be the principal concerns that had been expressed around this table.
We are coming forward with some proposed language for your consideration, and I note that we have put this language to the minister, who has agreed to our transmitting it to the committee for tabling and consideration.
We have four amendments to the bill in this package to present and explain. The first one is a reference to the Official Languages Act, 1988. Committee members may recall that during his appearance before this committee, Minister of Justice Martin Cauchon had indicated his willingness to put a ``stop date,'' if you like, on the scope and application of the bill. The minister had mentioned that the Official Languages Act, which had brought legal certainty to this issue, would likely be a good way to indicate that the purpose of this bill is to look back to instruments from a time when the government did not know the full nature and scope of its obligations. It gave this bill a context that indicated clearly what its purposes might be — to effect greater compliance with the Official Languages Act and the Constitution.
The second amendment is a reference to an exchange that occurred between Senator Joyal and Professor Pierre Foucher, during his appearance before the committee. At the time, the exchange essentially focused on the fact that perhaps clause 4, as currently drafted, was overly broad, because the purposes of this bill are to deal with legislative instruments that were originally made in only one official language, and to correct that potential constitutional defect. The bill's purpose is not to address another potential defect of a completely different nature that would have to do with the publication requirements not having been complied with for a given text. The language addresses this concern and makes it clear that this bill will be aimed solely at correcting the first defect — the potential language defect — and will not apply to texts that were required under some rule of law to be published but have not been published.
Let us look at the original language in the bill to grasp the context of the third amendment. You will recall that much of the focus of the committee's discussions was on subclause 4(3)(b). Therefore, before the committee today we have a proposal that takes away, if you like, the possibility that prosecutions could occur for, or that someone might be convicted of, an offence that had been created retroactively. Only in those situations where the contravention occurred after the passage or the introduction of this new regulation and after it had been published in both official languages could a prosecution and conviction occur.
The Chairman: You are referring to subclause 4(3)(b).
Mr. Tremblay: Yes. The motion is to replace lines 29 to 37, which refer to all of clause 4(3), with the shorter language. It would read:
4.(3) No person shall be convicted of an offence consisting of a contravention of a provision of an instrument re-enacted under subsection (1) unless the contravention occurred after the instrument was re-enacted and published in both official languages.
On the last page, we have new clauses and some renumbering, so the text is fuller than the existing bill. The new clause 6 — the equally authoritative clause — is a response to a suggestion by the Commissioner of Official Languages that for greater certainty, we may wish to clarify the fact that instruments re-enacted under Bill S-41 would be equally authoritative in both the English and the French versions. This was implicit in the bill, in our view, as currently drafted. However, this certainly reflects the spirit of the bill and we have no hesitation in putting forward this motion.
The proposed new clause 7 is a repetition of what had been clause 6. Proposed clause 8 is new and meant to address concerns about the discretionary power that subclause 4(1) grants to the Governor in Council to re-enact instruments that had not been published in both official languages.
Our concern was that there was no indication that the government would take active measures to demonstrate its commitment to the equality of both official languages. This new clause will demonstrate the government's commitment to undertake actions to address the potential problem and provides the appropriate powers for review to the Standing Joint Committee for the Scrutiny of Regulations. It contemplates the Minister of Justice presenting a comprehensive review of the work done in implementation of clause 4.
To be clear, what we have in mind with this language is exactly the type of process that Manitoba went through and reported upon when it had to re-enact its laws and regulations in both official languages. Subsequent to that, the Minister of Justice put forward a report for review to the committee referred to in section 19 of the Statutory Instruments Act, currently the Standing Joint Committee for the Scrutiny of Regulations.
Those are the motions that we have brought for your consideration today, and we would be happy to answer any questions.
Senator Beaudoin: How do we proceed? We will take them one by one?
The Chairman: I would suggest we do that rather than jumping around and becoming confused.
Let us start with the first one, clause 2.
Senator Beaudoin: I agree with the text that has been suggested, as we base everything on the Official Languages Act No. 2, not on section 18 of the Constitution Act, 1982. That is the choice you made, and you explained that the other day. There are two fundamental dates. The Constitution Act, 1982, and section 18, in particular, is at the heart of the Constitution. However, you prefer the other date, which is when the Official Languages Act No. 2 came into force. I still do not understand why you do not refer to the Constitution itself.
Mr. Warren J. Newman, General Counsel, Constitutional and Administrative Law Section, Department of Justice: This proposal, Senator Beaudoin, does not depend on a recognition of either 1982, 1867, 1979 or the 1981 Blaikie decision. In terms of what is constitutionally required, this proposed legislation will only operate on instruments made before September 15, 1988, because since then, they always have been made in both languages. There is no problem since that date. We are trying to put in a date that will refer to when there was a problem. This is prior to September 15, 1988, not 1982, 1979 or 1981. The problem may have occurred up to 1988, although probably not, but at least until the mid 1970s. This date was the most appropriate.
[Translation]
The date, namely 1988, establishes a clear rule of law. To all intents and purposes, section 7 of the Official Languages Act corresponds to the requirement in the Constitution and in the court decisions in Blaikie and Re Manitoba Language Rights. The wording is the same.
Senator Beaudoin: Admittedly, 1988 is an important date. We are assuming that after 1988, no errors were made, or at least we hope that that is the case. However, you seem to be saying that some errors may have occurred between 1982 and 1988.
Mr. Newman: That is a possibility, and this bill would rectify that situation.
Mr. Tremblay: The Commissioner of Official Languages stated just the opposite when she appeared before your committee. She maintained that it was important to have at all times the absolute authority to correct defects. To err is human, and the possibility of making mistakes will always be there.
The aim is to agree on a date that is manageable for the government and that, as Mr. Newman pointed out, establishes a clear, unambiguous rule.
As you know, the Supreme Court has interpreted section 18 of the Charter as applying to regulations. However, this requirement would not be as clear to an official called upon to make regulations or instruments.
The reference to 1988 has brought some legal certainty to this issue for us. It is a clear date, one with which we are comfortable. We acknowledge that human nature being what it is, errors may have occurred after this date. However, there would no longer be any moral justification for thinking that these errors could have been made legitimately, that is without full knowledge of the scope of the obligation.
Senator Beaudoin: I agree. However, any errors committed after 1988 were isolated incidents. Agreed?
Mr. Tremblay: Agreed.
Senator Beaudoin: Before 1988, everything is on the table?
Mr. Tremblay: Correct.
[English]
Senator Joyal: On the same point, I think the question is important because it could raise the ambiguity that the obligation started in 1988. If we try to determine when it started, I do not think we will find that it was in 1982, as the court in the Manitoba case interpreted the Constitution of 1867. That is why all the Manitoba legislation was declared invalid. It was declared invalid on the basis of an obligation contained in the Constitution of 1867, not in the Constitution Act, 1982. The first Blakie case was in 1979, and the second was in 1981. They interpreted the text as written in 1867.
Mr. Newman is right in saying we have to determine the date, and if we take as a principle the date when the obligation is created, it would not work because we would have to go back to 1867. The Constitution Act, 1982, reaffirmed the obligation in the Constitution of 1867 and extended it. It is not on that basis that the obligation of the government exists to enact the regulations that were not published in both languages when they were required to be so.
That was decided on the basis of the Constitution of 1867. I wrestled with the same question in trying to determine the date. The date of the Official Languages Act, which is clear about the obligations of the government, is reasonable. If we were required to go before the courts, that would be the basis for the legal argument.
Mr. Newman: To be clear, this bill and these amendments do not, in any way, bring into question the fact that there is an obligation that was recognized by the court in 1979 and 1981. That recognition goes back ab initio to the Constitution of 1867 in respect of section 133 of the Constitution Act. Because it was a concern in this committee, this provision states that this bill could be used in the future — forever — to evade the requirements of section 133 and section 18. This provision states that this act will only be used in relation to certain instruments that may have been created in one language only prior to 1988. The 1988 date is simply to provide clarity so that we do not come back and say that we have found one since 1981 — made between 1981 and 1988, for example. It gives us the clarity to be sure that the practice will be spotless from 1988 forward, and where we are less sure, prior to 1988.
Mr. Tremblay: The same objective could have been met by the coming into force of this bill. If we are concerned with ensuring that Parliament is not giving itself power to continue to do things in the future — if that is the primary concern — then 2002 would be a sufficient date. We are saying that, in addition to that concern, including a reference to the Official Languages Act in the bill gives it colour and life, gives the spirit of this bill greater clarity and indicates from whence it comes.
Ultimately, it might be useful to a court in interpreting an ambiguity. We hope that those will be eliminated, but if not, it will help the court to understand that this is the context and the spirit behind the purpose of this bill. Therefore, we like the reference to the Official Languages Act for that reason — it brings into context the government's commitment to the equality of status of both English and French.
Senator Andreychuk: If I understand your comments, it is based on the Manitoba case, which was based on the Constitution of 1867. Are we saying, when we pick September 15, 1988, that there were no further obligations in 1982 in our Constitution that affect this, or are we saying that those may yet be interpreted?
Mr. Newman: We are not saying anything about 1982 per se because 1982, in relation to the enactment of proposed legislation, confirms what was already in section 133 at the federal level and the Blaikie decisions, and expressly confirms a rule of equal authority of the legislation. We are not bringing into question the Constitution Act, 1982, or section 18 of the Charter. However, we are saying that there has been, at the federal level, an obligation that goes back to 1867. In the Manitoba case, it goes back to 1870 with the Manitoba Act.
Senator Beaudoin: When we abolish —
[Translation]
Mr. Newman: Yes, an attempt was made to repeal it in 1890.
[English]
It does not change our view of the Constitution Act of 1982.
Senator Beaudoin: It is not an affirmation because the Constitution Act is still there.
Mr. Newman: Yes, it is still there and it is the supreme law of the country.
The Chairman: This committee cannot change that.
Senator Bryden: I understand that what is to included is the converse of the ``best before date.'' You are saying that anything that happened before September 15, 1988, and section 70 of the Official Languages Act, is suspect.
Mr. Newman: It could be.
Senator Bryden: However, anything that happened after that date that violates that could be acted upon under this bill. That is the entire purpose, as I see it. Is that fair?
Mr. Tremblay: That is fair.
The Chairman: How do senators wish to proceed? Senator Beaudoin has suggested amendments. Do you want to discuss those at the same time, while we are on the same point?
Senator Beaudoin: Obviously, our proposals are not contrary to the government's proposals. However, in clause 2(b) of the first amendment, the word ``enacted'' is not used.
The Chairman: That is correct. Clause 2(b) states: ``an instrument that amends or repeals an instrument referred to in paragraph (a).'' In paragraph (b), it mentions an instrument enacted before the coming into force of section 7, et cetera.
Senator Beaudoin: — (b) refers to —
The Chairman: — paragraph (a).
Senator Beaudoin: It refers to paragraph (a), but paragraph (b) is not amended because, in your opinion, we are concerned with text that has not been enacted.
Mr. Tremblay: That is correct. The legislative drafting reason for the presence of (b) is the various classes of documents that can come under the definition of ``legislative instrument,'' that broad class of documents. Not all documents that amend legislative instruments are themselves legislative instruments. For example, it is possible that an Order in Council could have been amended by something other than a legislative instrument.
Senator Beaudoin: The question is, (b) concerns only text that has not been enacted.
Mr. Tremblay: That is correct.
Senator Beaudoin: If so, then I would remove the amendment to (b).
The Chairman: Then you agree with the government amendment.
Senator Beaudoin: I do entirely, providing you agree that those texts have not been enacted.
Mr. Tremblay: If they had been enacted, they would be covered by (a).
Senator Fraser: I am still confused on this one.
An instrument that amends or repeals something that has been enacted should surely come under the same conditions and requirements. Can you give me an example so that I will have a firmer grasp of it?
Mr. Tremblay: I cannot give you an example offhand. The best explanation I can give is the one I gave to Senator Beaudoin. The Governor in Council makes Orders in Council. The power, through time, to amend or repeal such a text can change hands. It may have been given to a mere public servant, for example. The text created by a mere public servant to amend or repeal the original legislative instrument would not necessarily be a text of a legislative nature. If it were of a legislative nature, then we would not be concerned with it because it would come under paragraph (a).
If it is an administrative text that repeals an otherwise valid Order in Council, or other instrument of a legislative nature, then we want it to be included in this whole corrective process. The concern is not respect for the constitutional requirement on languages, as there is no requirement for texts in (b), the concern is to preserve the legal continuity of texts throughout, so that those that were repealed are not accidentally revived by a missing piece in the puzzle.
It is a definition that is meant to be as encompassing as possible, to bring all texts that are meant to be covered by the constitutional requirement into conformity without reviving anything that ought not to still be alive.
The Chairman: We will move to the second suggested amendment, on clause 4.
It is on page 2: ``That Bill S-41 in clause 4 be amended by replacing lines 11 to 13 on page 2 with the following...'' It is in 4(1). Also, clause 4 on page 2 is amended ``by replacing line 14 with the following...''
Senator Beaudoin: Could you repeat the purpose of ``exempted by law''? Which one?
Mr. Tremblay: To exclude from the scope of 4(1) texts that were required to be published under the rule of law but were not. If we included those, the bill would be correcting two problems. It would be correcting the language problem, and, potentially, the publication problem.
The issue is, there are texts that may have been published in only one official language. We talked about that in one of our prior appearances. During the war years, it appears some official publications like the gazette may have been published in English only. They may have been published in one language, or they may not have been published at all. However, among those that were not published at all, which were included in our original text, there could be two different types — some that were legitimately not published at all, and some that were not published for no legitimate reason.
We want to correct the situation with texts that were not published at all only if some rule of law, which in most cases would be the Statutory Instruments Act, exempted them from publication. If they were not published but should have been, we are not touching them. That is a defect for some other time and person to correct.
Senator Beaudoin: There were two decisions of the Supreme Court after the war.
Mr. Tremblay: If there was an exemption from publication between 1867 and 1988, then 4(1) can apply to a text that was not published.
Senator Beaudoin: If the text had not been published during the war, it was before the Supreme Court made the two rulings on publications.
Mr. Tremblay: Yes, the two rulings on enactment in both official languages.
Senator Beaudoin: At that time, there was no ruling on exempting publication.
Mr. Tremblay: The exemption from publication does not derive from case law, it derives from statute law. We are saying that if you look at the Statutory Instruments Act, it provides for certain types of regulations to be exempted from publication in the Canada Gazette. That is all we are talking about, that there is a body of texts out there that have not been published and conform to this statute.
Senator Beaudoin: Were they enacted in both languages?
Mr. Tremblay: No, the ones we are seeking to correct were not enacted in both official languages. We want to correct the fact they were not enacted. We do not want to inadvertently correct what may have been other errors over time. We are not concerned with errors pertaining to publication.
Senator Beaudoin: It pertains only to the fact that they were not enacted.
Mr. Tremblay: That is all we want to correct.
Senator Joyal: The amendment is appropriate, because we had a lengthy discussion around this table following from the explanation of Professor Foucher when he testified. The issue we both raised was that of correcting a defect when the legislation had to be published. We did not want to do two operations in this bill.
We wanted to stay with the correction of the defect that it was not enacted and published in both languages. It had to be published in one language to be admitted or be exempted. If it is exempted, it does not need to be published.
Mr. Tremblay: They are never exempted from enactment.
Senator Joyal: Yes, this answers the question simply. However, we had a lengthy discussion, two hours, one day with Mr. Tremblay. There was some confusion with the original wording, but this one answers, in my opinion, our preoccupation with being certain that this bill addresses the corrections of text on the languages basis only and not on the publication issue.
Senator Beaudoin: I would agree that their proposal is certainly right. The amendment to include 7 is not strictly necessary.
The Chairman: It is clause 4, page 3, paragraph 7.
Senator Beaudoin: I think we should leave it. Three years after this bill has come into force, an instrument as described in subclause (1) that has not been re-enacted would be repealed. We need to include something like that.
The Chairman: I will say that an extra clause has been added at the end. It is clause 8 that refers to a review. That may cover what you have put into clause 4, paragraph 7.
Senator Fraser: It does not cover that. Perhaps the timing needs to be different.
The Chairman: The timing is different. Review and report are different from what that amendment will do.
Senator Beaudoin: I want to be sure that we do not lose something in saying yes to this. In other words, there is no doubt that what you say is right. However, I want to be sure that what has not been enacted does not fall between two stools.
The Chairman: We will continue page by page to ensure that we cover everything on both. We will not skip over any of it.
It may help the clause-by-clause to proceed a little faster tomorrow.
Senator Joyal: Unless there are other questions on the understanding of the implication of this proposal. I do not think it is covered strictly by amendments tabled by Senator Beaudoin. It is an amendment on its own. You have not addressed the problem, but you have raised a concern that we have had around the table about the implications in the lack of publication of something that needed to be published. The amendment tabled by the officials of the Department of Justice clarified a point in the original bill.
Senator Beaudoin: I agree with what they propose. I have no problem with that.
The Chairman: If we go through this bill clause by clause, the next amendment to be put before us tomorrow, perhaps, is also on clause 4 at page 2. Senator Beaudoin is proposing to replace line 14, which immediately follows the last one, with: ``Council shall, by regulation, within three years after the coming into force of this Act, repeal the legislative instrument.''
Senator Beaudoin: There is a debate about whether it is imperative or indicative. We will agree that the word ``peut'' is acceptable.
The Chairman: It is clause 4, page 2, line 14. It is a short one.
Senator Beaudoin: At line 14, we have suggested that council shall, by regulations, repeal the legislation. I do not think we need ``shall.''
Senator Joyal: We have ``may,'' and are proposing ``shall.''
The Chairman: Senator Beaudoin, this is your amendment.
Senator Beaudoin: I know.
The Chairman: Let Senator Beaudoin make his point rather than you making it for him, Senator Joyal.
Senator Beaudoin: Perhaps there is a point I do not see. The word ``shall,'' on reflection, is not necessary. The word ``may'' may be acceptable. If your side is proposing the word ``shall,'' I would like to know why.
Senator Joyal: We are not proposing any word. I am not proposing anything. It is important that the experts who are before us today comment on the question because we have raised that issue around the table. Since the witnesses have listened to our discussions on that, it might be appropriate for them to comment on keeping that line of the clause as is and not substituting ``shall'' for ``may.''
Mr. John Mark Keyes, Director, Legislative Policy and Development, Department of Justice: I would offer two justifications for keeping ``may.'' Powers are given to the Governor in Council because they require judgment. They generally involve matters of public policy and some complexity. ``May'' and ``peut'' are needed to allow for the flexibility to respond to those considerations that prompt the power. When a power is drafted using the term ``shall,'' it is a mechanical power, such that either the circumstances that warrant it exist or they do not. It is a simple matter to determine whether they exist.
In this case, we would suggest that the circumstances underlying the exercise of the power may be complex. They involve questions about what an instrument of a legislative nature is. That complexity justifies the need for some flexibility and discretion in the exercise of this power.
Senator Beaudoin: You prefer ``may.''
Mr. Keyes: Yes, that is correct.
Senator Beaudoin: It is more advantageous, in a way.
Senator Moore: It is more flexible.
Senator Fraser: I thought it was logical, when you look at the package of amendments that Senator Beaudoin has proposed, that that one be presented out of order, in terms of where it falls on the pages. It would be looked at in the light of the proposed amendment that precedes it. If the first of those amendments —
The Chairman: I have reordered the package.
Senator Fraser: I did not have the nerve to do that. If this committee were to adopt the proposed amendment that upon the expiration of three years after this act comes into force, any legislative instrument described in subsection (1) that has not been re-enacted in both official larges is repealed, there would be no need to consider the question of ``shall'' or ``may.'' That issue would become academic. It is the same time period — three years.
On the other hand, if we did not adopt that —
Senator Beaudoin: That is the only debate we have. It is three and five years.
Senator Fraser: Perhaps we should postpone it. I like the order in which Senator Beaudoin presented these. It makes sense to me.
The Chairman: Is it agreed that we will come back to this when we get to that stage in our discussion?
Some Senators: Yes.
The Chairman: The next one is clause 4, page 3. The next government amendment is again on clause 4, page 2, and replaces lines 29 to 37 with ``unless the contravention occurred after the instrument was re-enacted and published in both official languages.''
Senator Beaudoin: I am strongly in favour.
Senator Joyal: It should be on the record, and the witness may speak on this, as I see our colleague, Senator Cools, was very concerned about retroactivity. This addresses the retroactivity issue. Maybe we can have comments from the representative of the Department of Justice?
Mr. Tremblay: Essentially, the concerns that were expressed in committee were that we might have been contemplating the possibility of convicting a person for an offence that had been retroactively ``validated,'' if we can use that term, under a regulation that was unpublished. There was the additional protection of having to take reasonable steps to bring the substance of the legislative instrument to the notice of that person.
There were substantial discussions around that issue. The motion tabled here essentially eliminates the possibility that any person will be convicted in a prosecution for an offence under one of these retroactively validated regulations. The only prosecutions leading to a conviction that could take place under this current draft are those that occur after the new regulation is enacted and published in both official languages.
Senator Beaudoin: Does this mean paragraph 2 is out?
Mr. Tremblay: Paragraph 3(b) is gone. The motion replaces lines 29 to 37, which are currently labelled 3(a) and (b), with the shorter text you have here.
The Chairman: The next government amendment is to clause 6. I suggest we deal with the ones that Senator Beaudoin has put before us on clause 4, on page 3, and come back to the one that Senator Fraser was concerned about on clause 4, on page 2.
Senator Cools: I am not sure I understand what we are doing. Are we in clause by clause?
The Chairman: We are not. The committee agreed to look at the government amendments and the ones we know Senator Beaudoin is going to propose at the same time. Senator Beaudoin has agreed with the government ones so far, and has in effect withdrawn his. We are now coming to a different situation. We will do clause-by-clause tomorrow morning.
Senator Cools: Is this a preliminary look?
The Chairman: This is a preliminary look at the whole thing.
Senator Beaudoin: Clause 4, page 3. What we propose is that upon the expiration of three years after this act comes into force, the legislative instrument described in subsection 1 that has not been re-enacted in both official languages is repealed. There is a certain logic there. I would like to hear from the justice department.
Mr. Keyes: This amendment was inspired by comments from representatives of the standing joint committee, based on section 32 of the Statutory Instruments Act as it was originally enacted in 1970.
I would like to point out an important difference between that act and the bill here. The purpose of the Statutory Instruments Act was to deal with the body of regulations that were then in force.
The bill before you has a different scope. It reaches into the past. Many of the instruments it is dealing with were made in the past, and some have already been repealed. Our concern with the breadth of your proposed amendment is that it may not be clear what the impact is, particularly on instruments both made and repealed in the past. We are concerned that somehow it may be interpreted as disturbing transactions that have come and gone under those old regulations that are no longer in force.
We are concerned that your amendment is, at the very least, too far reaching, in that it may repeal for a second time instruments that have already been repealed.
Senator Beaudoin: Were all of them repealed?
Mr. Keyes: In the Statutory Instruments Act? It only dealt with instruments that were in force in 1971, when the act came into force.
Senator Fraser: Addressing this particular point, it seems there might be a different form of words. If you can persuade us that we are talking about real damage being done to contracts that were valid and have successor consequences today that would suddenly be voided because of this clause, perhaps we could find a way to reword it.
My fundamental position, which I think this amendment essentially meets, is that if they were not valid, then at a given point in time — and that too perhaps would be open to negotiation; maybe three years is not quite enough time — if it has not been fixed, it should not be considered to be still available. I do not think we should be giving ourselves wiggle room and loopholes to avoid meeting our constitutional responsibilities. I did not think the governments of Quebec or Manitoba should have been given that wiggle room, and I certainly do not think the Government of Canada should be given it either.
It is a matter of principle, as far as I am concerned, and of consistency. This Parliament — this institution — stood strongly behind our rigorous application of the constitutional requirements when it was the provinces that were affected.
I do not want to argue in favour of double standards. If we are rigorous with others, we should be rigorous with ourselves. As to the precise terms, that, I think, is open to discussion. Maybe three years is not enough. I would not want to see it go beyond five, but maybe there needs to be a little adjustment to avoid actual damage being done to citizens of Canada in the case of repealed instruments that you were talking about. On the basic principle, I think this is a truly excellent approach.
Senator Beaudoin: I agree with you that the question of three years or five years is debateable. If it needs to be five years, I think that is fine.
I agree with your first point, Senator Fraser. We cannot do that with the Constitution because it is the law of the land. We have to comply, whatever the cost.
If you convince me that we need five years, I will vote for that. However, like Senator Fraser, I want to ensure that we respect the Constitution.
Senator Cools: I have some concerns and I am not sure if they are procedural. It seems that before we proceed to contemplating amendments, this committee should spend some time considering whether the issues are properly before Parliament. We are being asked to vote for something that is not before us. Perhaps these witnesses could explain to us what form of bill this is that asks Parliament to vote on proposals not before it, and on what authority the ministers are bringing it before us. I would suspect that there is no parliamentary authority for a bill of this form. I could develop some very sophisticated arguments that this is not a bill at all because the proposal that Parliament is being asked to give its opinion of, and its judgment on, is not contained in it.
For anything to become a law of Canada, it should have three readings in each chamber and then the assent of Her Majesty. We are being asked to vote on something that has not had one reading, let alone six, in the two houses.
The Chairman: This is a Senate bill and it is properly before us. It has had two readings in the Senate chamber and is framework legislation, just like almost any other bill before us.
Senator Cools: It is not. This is why I am asking these questions. We are asked to vote on something that is not before us or contained in the bill. An act of Parliament is what we see on the paper. We are being asked to pass a century of instruments. Those instruments should be before us. We are not an imperial body and so we do not make declarations — this is hereby enacted.
The Chairman: Excuse me, Senator Cools, perhaps we will allow these gentlemen to answer.
Senator Cools: I would like to know your constitutional and parliamentary authority for this form of bill, and I would like you to tell me what form of bill this is.
Mr. Keyes: The constitutional authority is the same as that that underpins all the instruments that were purportedly made. That is the substantive authority. If an instrument is made under a federal statute, we assume that the authority for that statute existed, and we are relying on that authority.
Now, as to your point that there is little detail in this, I would suggest that this is not an unusual bill. In my experience, about every two or three years, bills of this nature are presented and passed by Parliament that validate instruments that, for one reason or another, were defectively made. Often, that is because there was a defect in the process of making them, or sometimes in the substantive authority. Therefore, the object of the bill is to provide that authority, but also to validate the things that were done in the past when the authority was lacking.
In those cases, we typically do not reproduce the terms of those instruments, but rather the registration numbers are referred to and cited. In this bill, we are basically taking the same approach. We are trying to identify what those are and to validate them.
Senator Cools: I understand you to say that we have passed several other re-enactment bills before. In this bill, the word in clause 3(1) is ``re-enactment.'' You are saying to me that this sort of thing is common.
Mr. Keyes: I would not say it is very common, but there are a number of examples of legislation that I would describe as ``validating.'' We have recognized that there is some legal defect with certain instruments and the legislation is intended to correct that.
The Chairman: Senator Cools, I would add that we are attempting to fix delegated legislation — not legislation itself. That is what regulations are. I cannot see that there is anything wrong with giving a minister the power to fix the laws, the substance of which was delegated in the first place.
Senator Cools: This bill does not do that. I would have no problem with giving the Governor in Council the power to fix or correct subordinated or delegated legislation.
This bill makes a declaration of a re-enactment without telling Parliament what it is that is being enacted. We have to understand what an act of Parliament is and what ``enactment'' means.
When something is enacted in Parliament, for example, ``that this grey-haired senator shall now be viewed as a black-haired senator,'' that proposal is contained in the bill and Parliament's approval is sought. This is not the case with this bill. This is highly irregular. I want to know the authorities. There are hosts of parliamentary authorities that one looks to constitutionally when one frames legislation. At the time that the BNA was being framed —
The Chairman: Thank you. Senator Fraser on this point, and then I believe Mr. Newman —
Senator Cools: I want to know.
The Chairman: Senator Cools, we are attempting to get some answers for you.
Senator Fraser: I would simply observe that there is no question here of any text that has not already been enacted in one official language. We are not giving a blank cheque to anybody. Every text to which this bill refers exists already and has been duly adopted, except for the linguistic element. Every other aspect has gone through all the normal rigorous processes.
Senator Cools: I have no problem with that whatsoever.
Mr. Newman: This bill, as you mentioned, senator, addresses delegated legislation or subordinate legislation. In terms of the constitutional authority and the administrative law support for this, Parliament is supreme within its jurisdiction under section 91 of the Constitution Act, 1867. Parliament has chosen, through various statutes, to delegate some of its legislative powers to subordinate bodies. Through this proposed legislation, Parliament is correcting some of the errors of its subordinates. Only Parliament is in a position to do that. As some of them no longer exist for various reasons, it would be awkward to try to re-establish each of these instruments. We are re- enacting regulations, subordinate legislation, not acts of Parliament.
Senator Cools: This is an act of Parliament that is being used as an imperial declaration.
Mr. Newman: Parliament, in its authority, is doing this.
Senator Cools: That is the whole point. It is not telling us what it is asking Parliament to approve.
Mr. Newman: Parliament is saying — if Parliament enacts this proposed legislation — that legislative instruments coming within the definition here will be re-enacted.
Senator Cools: I read that carefully. I am saying to you there is no such parliamentary precedent for this sort of declaration.
The Chairman: What you are raising here is a point of order. At this point, we are trying to go through what will probably be amendments to this particular bill, which is properly before us because the Senate of Canada has sent it to us.
I believe we are not getting too far with this discussion. We should carry on considering the amendments that are before us.
Senator Cools: I would submit that if we are not getting answers, maybe we should get some witnesses who can give us some.
Senator Bryden: If I can make an observation, I find it rather late in the game for a member of the committee to raise what in legal terms would be a preliminary objection as to why we are here. This has been going on for weeks and months. It went through first and second reading in the Senate, and if you want to oppose it in its entirety, you will have an opportunity on third reading.
Many people have put much effort into this, and they believe that what we are doing is simply attempting to enact legislation regarding instruments that have occurred in the past that did not conform to our requirements that they be in both official languages. That is basically what we are doing.
If you have a technical problem with it, let us defeat it on the floor of the Senate when it comes for third reading. It is unfair for you to show up here today, after weeks of work, and you are member of the committee —
Senator Cools: I am sorry, I have raised this issue in this committee. I have raised this issue and it has not yet been answered.
Senator Bryden: You raised it today.
Senator Cools: I have raised it before.
The Chairman: Order. Order, please.
Senator Cools: Check the records.
The Chairman: Order, please!
Senator Cools: Maybe you missed meetings too.
The Chairman: Order, please. Senator Cools has raised this before, to be fair to her. I think the point that Senator Bryden is making is correct. If you believe that this bill is improperly before us, then the place to take issue with that is on the floor of the Senate chamber.
Senator Cools: I have witnesses here from the Department of Justice who were involved in framing this.
The Chairman: Yes, Senator Cools, and they have answered you several times.
Senator Cools: I have not been answered.
The Chairman: Senator Cools, order please. Order!
Senator Cools: Do not talk to me like that.
The Chairman: I am attempting to make this a productive session so that we do not go through exactly the same thing tomorrow morning.
Senator Cools: Oh, we will.
The Chairman: Undoubtedly we will. Senator Cools, if I may complete what I was going to say, please.
I am going to take this as a point of order. I am going to rule it out of order. I am going to ask for the support of the committee to do so.
Are we agreed? We are agreed.
Senator Cools: I would like a formal vote on that by way of a motion.
Senator Fraser: I move that this committee support the chair's ruling on the point of order raised by Senator Cools.
Senator Cools: I did not raise a point of order, nor did I ask the chair to make a ruling on a point of order. It is unfortunate that someone can put words in my mouth. If I had wanted to raise a point of order, I would have. I raised no point of order, and it is extremely out of order for Senator Fraser to make a motion suggesting that I did.
The Chairman: Are we agreed that we will carry on with the discussion of the clauses that are before us? Thank you.
Senator Cools: I wanted a formal vote, with a roll call.
Senator Fraser: I withdraw my motion. I can rephrase it, if that is your wish, Chair.
Senator Cools: You need an agreement to withdraw your motion.
The Chairman: We do not need seconders in committee.
Senator Fraser: I can withdraw my motion.
The Chairman: I believe Senator Fraser can withdraw her motion. We will carry on with the discussion of these clauses. We are still on clause 4, page 3, with a suggested amendment, subclause 7.
Senator Andreychuk: I had concerns when you were trying to take this bill into areas where something that was supposed to be published had not been published at all, and that was a fundamental flaw that I could not overcome.
Since you have withdrawn that, it seems to me there is still one hurdle left. If I go back to the Manitoba case, which I know the best, your new clause 8 talks about undertaking a comprehensive review of the operation of proposed section 4 and the report. You talk about submitting a report on the review.
Had you said that you would undertake a comprehensive review of delegated legislation that could be caught under this bill, and that you would submit a full and exhaustive review such as that in Manitoba, then I do not think we would need this subclause 7.
I am caught between these two amendments. On the one hand, it says, ``upon the expiration of three years after this act, any legislative instrument described in subsection (1) that has not been re-enacted in both official languages is repealed.'' To me that is obvious. That is the point that Senator Fraser is making and I agree.
I thought the proposed new clause 8 should have been a modality to assess all the regulations to come to that determination. If clause 8 went that far, we would not need proposed subsection (7). If we leave clause 8 as it is, it is simply a report on an operation of a section and does not deal with the enactment of the faulty legislation. Therefore, some kind of subsection (7) is required, whether it should be this one or another one. You are saying that you will undertake a review in five years, and we have an expiration time of three years. Therefore, there is a time-related conundrum.
Are you prepared to look at clause 8 as more than the words obviously state — that it is just a comprehensive review of an operation and a report? On page 2, it simply states that a report on the review will be submitted to that committee. It does not say that it will be a comprehensive review, or that you will analyze all of the legislative instruments, et cetera. There is no finality to this report in clause 8 and there is no assurance of a comprehensive review of all the legislative instruments that may be caught under this.
I believe clause 8 needs to be strengthened, or that we need subsection (7), as Senator Beaudoin said.
Senator Fraser: It would work if clause 8 included a commitment to act upon the findings.
Senator Andreychuk: That was the way the situation developed in Manitoba. The undertaking was to go through the legislative instruments and determine which ones were faulty. Obviously there would still be human error, but we would find the substantive ones if there were a comprehensive undertaking to review the legislative instruments and re- enact them. That is my point. Failing that, we need something like a subsection (7).
Mr. Tremblay: I could speak to the spirit of the proposed clause 8. The comprehensive review is referred to in subsection (1). When we study a bill, we look for the intent. In this case, the intent is for the same comprehensive review as that which is discussed in subsection (2). It is just a matter of interpretation. There is a heading that says ``review,'' there is a clause 1 that says ``comprehensive review,'' and there is a clause 2 that says ``a review is undertaken,'' obviously referring to the comprehensive review in clause 1. It is a comprehensive review. We have to look back to see what proposed section 4 deals with. Our intent, to repeat it, is to have the Minister of Justice undertake a comprehensive review of the implementation of clause 4. That would entail a commitment by the Privy Council Office, PCO, along with the justice department, to undertake research with all regulatory authorities so that texts are identified and considered for re-enactment by the Governor in Council. That would be the content of the report. That document would report back to the standing joint committee on the steps that had been taken. Presumably, if there were some concern about the nature of the exercise, then the committee, in full and open session, would have some scrutiny over the process.
We feel this is the type of language to address the concerns raised that the government might sit back and do nothing, coupled with something that is underlying all of this — our commitment to respect the Constitution. This bill does not need to say that we will respect the Constitution because that is a given in the work that we do. Although some have called the good faith of the government into question, I think it is fair to assume that the government will act in good faith and that this bill is being put forth in good faith.
That is an explanation of the content of proposed clause 8. In our view, it meets the concern and is sufficient. We take the point. We understand the concern, and we have our own with clause 4, page 3, as suggested by Senator Beaudoin. Mr. Keyes has expressed these concerns already. We understand the spirit in which it is being presented. We will look at it further in the course of the evening. I would note at this point that we would not want to have clause 4 applied to texts that have been previously repealed.
The Chairman: Which clause?
Mr. Tremblay: Senator Beaudoin's clause — ``upon the expiration of three years...''
The Chairman: That is clause 4.
Mr. Tremblay: Yes, the repeal clause. We would not want it to apply to texts that may have been repealed. We want to ensure that such a clause would not apply retroactively, potentially disturb a past legal situation and introduce new types of difficulties. We would also presumably argue in favour of a longer period of implementation before taking the somewhat drastic step of repealing these instruments.
Senator Andreychuk: Going back to clause 4, I do not see where there is an obligation to do a comprehensive review and go through the texts. It is still permissive, and no doubt you would do it when and how you could. The point that Senator Fraser and others have been making is that there is a duty to do that. If you emphasize the duty in clause 8, then I do not think you need the clause that Senator Beaudoin is proposing. However, if you want to leave clause 8 as it is, then we need such a clause, subject to your reservations about excluding certain situations.
Mr. Tremblay: Given that the Minister of Justice is not before the committee, perhaps we can agree to take both options back to him and bring our views to the committee tomorrow.
Senator Pearson: When you talk about greater certainty, the re-enactment of the legislative instruments under the bill does not revive those instruments. I do not see that addressed anywhere else, and yet this did come up. You were saying that we do not want retroactive penalties or to create new problems.
I can see two problems. I wanted to make sure that we did not revive instruments that had been repealed. It seems important to say that, and I do not see that clarity in the government regulations.
Senator Beaudoin: I agree with Mr. Tremblay. If you correct this situation in clause 8, I will drop that. However, if they do not redraft it, I think the amendment is right.
The Chairman: Senator Beaudoin, you can redraft it yourself to ensure it does not apply to legislative instruments that have already been repealed.
Senator Beaudoin: Perhaps.
Senator Joyal: I want to raise a point of order, taking into account what has transpired. Senator Pearson has raised a question that we can call upon our witnesses to answer before we go back to Senator Beaudoin and Senator Fraser's points, because it is interesting and valid.
Mr. Tremblay: The theory of this bill would, in our estimation, lead a court faced with the issue of an instrument being revived that ought not to have been to say that that was not the purpose. This bill is a corrective measure meant to level the field and make things right, but not to create these other problems. There would be a tendency for the court to approach it in that spirit. I think the references to the Official Languages Act and to the equal effect of both versions lead in that direction. However, that is an interpretation of the spirit of the language.
The specific words that address the issue are at clause 5 of the bill, where we provide that an instrument re-enacted under proposed section 3 or 4 is deemed to be, and to have always been, the legislative instrument it replaces. The next part talks about how it is to be cited. There is a first point, which is deeming the re-enactment to have always been exactly the same as the original text, so if the original text died, this text also dies.
That is sufficient to address another point in Senator Beaudoin's motion at clause 5, page 3, where he has: ``For greater certainty, the re-enactment...does not revive those parts of instruments that were repealed, revoked, replaced or inoperative...'' We have covered that with proposed section 5. That is also the purpose of citing it in the same way. There is no confusion. If something was labelled ``X'' originally, it is still called ``X.'' If ``X'' were no longer with us, that legal fact would be preserved by proposed section 5. We do not see the need for a repetition. It certainly adds another level of clarity to it, but it is to the same effect.
Senator Pearson: These words do not resonate easily with somebody who does not have the legal training.
Senator Fraser: I have been brooding about Senator Andreychuk's thoughts on an expanded and tightened clause 8, which seems to be a process, not a principle. The process is admirable. It says, ``Keep us posted on how you are doing.'' We are always glad to have formal legislative requirements that we be notified of how you are doing.
What it does not address is the fact that at some point, we have to say that our constitutional obligation will no longer remain open-ended for our convenience. There has to be a limit, at which time everything we have not fixed dies. Otherwise, we are trying to wriggle our way out.
If there are not many regulations to which this applies, so much the better. If it turns out there are quite a few, it is all the more important that we live up to our constitutional duty. However, that duty cannot be evaded just because it would be more convenient.
That is what clauses 4 and 8 seem to do, as currently drafted. They allow the government to move at its own convenience.
I do not think that is good enough.
Senator Joyal: Senator Fraser's second intervention will give our witnesses an opportunity to comment on the implications of the Manitoba ruling on the federal government's constitutional obligation to respect both languages in its legislative and regulatory activities. When the government concerned realizes that for all kinds of good reasons, which are understood against a historical background, that that did not happen, what is the nature of their constitutional duty to put this house in order? That is, essentially, the extent of the interpretation of the time given for this to be corrected, because this bill is remedial. It is to correct some defects that we think might exist, or certainly do exist, but we do not know to what extent. We have the Manitoba case, in which it was very difficult for the government to see that all its legislation was unconstitutional. I cannot imagine a worse scenario.
That is not the case for the federal government; we are not in a worst-case scenario. You and other witnesses have been telling us that there are a certain number of them, but it might be limited. They are buried in the history of our country. We understand that, as would any reasonable judge. However, a judge would like to be convinced that the time frame given to the government to take those corrective steps is also reasonable. How do you define that time frame in your reading of the obligation on the government?
Mr. Newman: Let us take your point. In the original Manitoba case, and by that I mean the Forest decision, which was rendered on December 13, 1979, the Supreme Court confirmed the invalidation of the Official Language Act of Manitoba, as decided by their court of appeal.
Manitoba turned around and the next year enacted a bill that purported to put both languages on an equal footing, although making it clear, from some of the provisions, that English was ``more equal'' than French. This was one of the questions later put to the Supreme Court in the Manitoba language rights reference. Rather than dealing with the backlog, it got worse through that period, as the reports of the Commissioner of Official Languages demonstrate.
When the second case arose, the federal government decided to take a reference to the Supreme Court. This was in 1984, after an attempt was made to produce a constitutional amendment through the section 43 procedure to resolve this translation backlog in return for certain services and communications in both languages. When that attempt failed, through a bell-ringing episode in 1983 that some of us recall, it went back to the Supreme Court.
The Supreme Court was faced with the same issue it had already dealt with five years earlier. This time, the court said that all the legislation was invalid ab initio and always had been.
It also said that its concern with the rule of law was twofold. They wanted to ensure that section 52 of the Constitution Act, 1982, was respected; the Constitution is the supreme law of the land. They also wanted to ensure that section 23 of the Manitoba Act was respected and that enactment in both languages took place.
The second aspect of the rule of law that concerned them just as much was not leaving Manitoba a society without laws.
[Translation]
As a state, we are still governed by the rule of law and as such, the concern was to preserve that rule of law.
[English]
That is why the court refused to set a time limit. It said that Manitoba was in a state of emergency and must re-enact its legislation as soon as possible. It asked them to come back with proof as to how much time was needed. The parties came back before the court and an order was issued in October 1985 giving — off the top of my head, and Senator Beaudoin was also there — three years to Manitoba for the primary legislation and five years for everything else.
Manitoba came back to the Supreme Court in 1992, saying that there were some areas in relation to incorporation by reference that it was still not sure about, and certain types of instruments that may or may not be legislative in character. The court extended its order.
Since then, other instruments have been found to be invalid. We talked about the Sinclair case. Sinclair dealt with the legislation to amalgamate the two cities of Rouyn-Noranda. There the Supreme Court gave the Quebec legislature a year to resolve that one situation. That was one piece of legislation.
I think a court will look at the issue reasonably. It will want to see that we are moving in the right direction. The point of the new clause 8 that the Minister of Justice is proposing, through us, to this committee is to undertake — it is more than an undertaking; it is an obligation — to conduct a comprehensive review and submit a report to a committee. That again moves in that direction.
We have said that we will look at Senator Beaudoin's proposal for a cut-off date, because I understand the idea of the carrot and the stick, or something of that nature, whereby minds will be more concentrated on the review if they know that after a certain date, instruments will be abrogated. We have undertaken to look at that amendment.
Senator Beaudoin: I have no objection to amending proposed section 8. My only argument is it should be somewhere.
Senator Bryden: I am concerned about what is in your proposal, Senator Beaudoin. This is like a guillotine. After a certain time, it is repealed. Whatever was there is gone.
In years gone by, when Canadian Pacific was building its railroad to the West, when people were getting divorces by acts of Parliament, and there were land grants by acts of Parliament, my great grandfather, the Brigadier of the Black Watch, was granted land by such an act. If this goes through, I will no longer own the land I am sitting on and defending with my life because my deed of right is gone — repealed. I do not know whether there is that sort of risk when you have a guillotine that comes down — that is it. I would think there has to be some way — we do it all the time in law — to ensure that people who do not have notice are not affected. I think you are focusing on the public legislation, and we had better comply with our own Constitution, but if this affects individuals' rights from long ago and impacts on current citizens, there must be some way to deal with it. That would be my concern and I ask that you consider it.
Mr. Tremblay: That is the concern I was expressing. It links up with the previous discussion of how a court might examine this issue. We are confident that a court, faced with such an issue, and absent this bill, would say that that was the past. What could the court possibly order the government to do other than enact an Official Languages Act that requires that from 1988 forward this is the way things will be, correct the gazetted versions, and conduct a search of the archives to find any other such text and re-enact it as required?
We do not think the court would say, ``and everything else is invalid and we will have to live with this constitutional and legal uncertainty from here on in.'' That is why we framed the bill this way and proposed clause 8. If we were to consider, or have our minister consider, a clause with an expiry date, we would not want such a clause to have a retroactive effect. The repeal, if there were to be one, would only have effect going forward in time and would not disturb the past.
Achieving that in legislative drafting terms may be a challenge. We have not examined this issue. We do not know all the possible ramifications, but we are concerned as well by those possible impacts.
The Chairman: You are asserting that under clause 8, the Minister of Justice will undertake a comprehensive review of the operation of proposed section 4 that will include research into which regulations may fall within this bill. It is not just the operation of the section.
Mr. Tremblay: That is the aim of that clause.
The Chairman: That is not what it says.
Mr. Newman: It says it implicitly. Proposed section 4 cannot operate without something having been brought to the attention of the Governor in Council. The operation of proposed section 4 encompasses everything that is usually done internally in our department and in the Privy Council Office. There are issues as to how much of the machinery of government one puts into the legislation, beyond the fact that the minister is undertaking to conduct a comprehensive review.
The only way clause 4 can operate is if we come up with something to which it applies, which means we will have to do some looking.
Senator Joyal: We have to feed the system.
Mr. Newman: Yes.
Senator Beaudoin: We have to comply with the Constitution and the terms should be strict. Do not forget that in the Manitoba case, it was three years for the review. Five years was only for acquired rights. It should be quite clear that we are complying with the Constitution. I am not too concerned about whether it is three years or five. If you come to the conclusion that we really need five years, I would agree with you. I rely on you because you are the drafting experts. We need something.
Mr. Keyes: Might I try to provide more comfort that clause 8 actually does something? The report is supposed to go to the committee, and that is established under section 19. That committee would obviously have a role in looking at the report, but also in looking at the nature of the review and coming to its own conclusions about its sufficiency. There is a certain check on what goes on that rests with that committee.
Senator Andreychuk: We were told that the committee raised that issue in 1992 and that did not seem to spur the government. Merely submitting a report on the review to the committee does not have quite the same effect as the amendments, such that the committee shall be given all reasonable time to conduct the operation and implement proposed section 4. There must be a cut-off at some point. Otherwise, it just continues the process of dissatisfaction, as the committee said in 1992. The point is being made that there is no guarantee that something definitive will happen.
The Chairman: We have covered the waterfront on all of this.
We do not know whether there will be a cut-off, or how best to establish that, taking into consideration the valid points that Senator Bryden has raised.
Senator Beaudoin: I believe I remember the case in Manitoba, when then Chief Justice Dickson asked all lawyers to meet in his office. He asked if we agreed on the three years, and then five years for acquired rights. The Chief Justice said that it had to end somewhere. That is why we should do the same thing in this case. It should end somewhere.
The Chairman: You are aware that almost everyone on this committee is fully in agreement with what we are trying to do and is a non-partisan group on this particular bill. We want to do the best we can.
The committee adjourned.